McHugh v. Protective Life Ins. Co.

IN THE SUPREME COURT OF
CALIFORNIA
BLAKELY MCHUGH et al.,
Plaintiffs and Appellants,
v.
PROTECTIVE LIFE INSURANCE COMPANY,
Defendant and Respondent.
S259215
Fourth Appellate District, Division One
D072863
San Diego County Superior Court
37-2014-00019212-CU-IC-CTL
August 30, 2021
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger, and
Groban concurred.
Justice Jenkins filed a concurring opinion, in which Justice
Corrigan concurred.
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
S259215
Opinion of the Court by Cuéllar, J.
Millions of California consumers manage financial risks
for their families by purchasing life insurance. Through these
policies, Californians ensure that their families and other
designated beneficiaries are protected by a financial safety
net — and are able to plan for contingencies — in the event of
the policy owners’ untimely death. But there’s a cost: In
exchange for continuing coverage, consumers pay regular
premiums to their insurers. If consumers fail to do so, insurers
have the right to end the policies.
In 2012, the Legislature created certain protections to
shield consumers from losing life insurance coverage because of
a missed premium payment. Codified in sections 10113.71 and
10113.72 of the Insurance Code,1 these protections went into
effect on January 1, 2013. Soon thereafter, the defendant
terminated one of the life insurance policies at issue in this case
because the policy owner had failed to make a payment.
Plaintiffs claim that the defendant had no right to terminate
these policies without complying with the newly codified
statutory protections against termination. The Court of Appeal
reasoned that sections 10113.71 and 10113.72 did not apply
because they appeared to affect only policies issued or delivered
after the sections’ January 1, 2013 effective date, and the policy
1
All unspecified section references are to the Insurance
Code.
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
at issue here predated the sections. In reaching this
construction of the statutes, the court cited — among other
considerations — its deference to Department of Insurance
(DOI) staff correspondence and electronic instructions for policy
forms.
We conclude that sections 10113.71 and 10113.72 apply to
all life insurance policies in force when these two sections went
into effect, regardless of when the policies were originally
issued. This interpretation fits the provisions’ language,
legislative history, and uniform notice scheme, and it protects
policy owners — including elderly, hospitalized, or
incapacitated ones who may be particularly vulnerable to
missing a premium payment — from losing coverage, consistent
with the provisions’ purpose. This interpretation does not
depend on extending deference to DOI staff correspondence or
electronic instructions, neither of which represent the agency’s
official interpretation of sections 10113.71 and 10113.72 nor
otherwise reflect the agency’s carefully considered, long-
standing, and consistent interpretive viewpoint on the sections.
Accordingly, we reverse the judgment of the Court of Appeal and
remand for proceedings consistent with this opinion.
I.
In March 2005, Chase Life Insurance Company, the
predecessor in interest to defendant Protective Life Insurance
Company (Protective Life), issued a $1 million term life
insurance policy to William McHugh. The policy named
McHugh’s daughter, Blakely McHugh, as the designated
beneficiary and Trysta Henselmeier, Blakely’s mother and
McHugh’s successor in interest, as a contingent beneficiary.
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
The policy was for a 60-year term, and it set out a schedule
of annual premiums to keep the policy in force. For the first 10
years of the policy, the insurance policy set the annual premium
at $310; after that, the premium steadily increased each year.
The policy included a provision for a 31-day grace period before
the policy could be terminated for the failure to pay the
premium.
McHugh paid all the yearly premiums through January
2012. That meant his policy was, by its terms, “in force” until
February 9, 2013, 31 days after the January 9, 2013 due date for
that year’s payment. On December 20, 2012, Protective Life
sent McHugh a letter reminding him of the January 9 deadline
and that nonpayment by February 9 would cause his policy to
lapse or terminate. McHugh failed to pay the premium by the
due date. Protective Life sent him a second letter on January
29, which stated that it had not received his premium payment
for the year and warned that his policy would lapse if he did not
make the payment by February 9, the end of the grace period.
McHugh again failed to make the payment, and the policy
lapsed. On February 18, Protective Life sent McHugh a letter
informing him the grace period had expired, but that he could
reinstate the policy if it received his payment by March 12,
during his lifetime. McHugh did not pay, and Protective Life
formally terminated his policy.
At some point close to when Protective Life sent its last
letter, McHugh suffered a serious fall that left him disabled,
caused him continuing physical pain, and required surgery.
McHugh passed away in June 2013. Henselmeier contacted
Protective Life to inquire about the status of McHugh’s policy
and whether a claim could be made. Protective Life advised that
the policy had been terminated. Thereafter, Henselmeier and
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
Blakely (plaintiffs) sued Protective Life for breach of contract
and breach of the implied covenant of good faith and fair dealing.
Plaintiffs argued that sections 10113.71 and 10113.72, which
came into effect on January 1, 2013, applied to policies issued
before this effective date, and that Protective Life failed to
comply with the statutes’ requirements before it terminated
McHugh’s policy.
In various filings, including its motion for a directed
verdict, Protective Life argued the statutes did not apply to
policies issued before January 1, 2013. In making this
argument, Protective Life relied at times on purported agency
interpretations of the statutes. The trial court rejected
Protective Life’s argument, concluding that the statutes applied
to McHugh’s policy. Ultimately, the jury found for Protective
Life. It concluded that: (1) Protective Life and McHugh entered
into an insurance contract; (2) McHugh failed to do all, or
substantially all, of what the contract required him to do, but he
was excused from doing so; (3) all conditions required for
Protective Life’s performance occurred and were not excused; (4)
Protective Life did something the contract prohibited; but (5)
plaintiffs were not harmed by Protective Life’s failure.
Plaintiffs appealed from the special verdict in favor of
Protective Life and the denial of plaintiffs’ judgment
notwithstanding the verdict motion. What they argued, among
other things, is that the trial court erred by declining to decide
as a matter of law whether Protective Life had complied with
Insurance Code sections 10113.71 and 10113.72, and instead
permitting the jury to decide that issue. (McHugh v. Protective
Life Ins. (2019) 40 Cal.App.5th 1166, 1171, fn. 4 (McHugh).)
Under Code of Civil Procedure section 906, Protective Life
requested the Court of Appeal affirm the judgment on the
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
additional ground that Insurance Code sections 10113.71 and
10113.72 do not apply retroactively to McHugh’s policy, and the
trial court erred as a matter of law when it ruled otherwise in
denying the directed verdict motion. (McHugh, at pp. 1170–
1171.) The Court of Appeal affirmed the judgment on this
additional ground. (Id. at p. 1171.) In reaching this holding, the
court first relied on two sets of DOI documents that it held
indicated that sections 10113.71 and 10113.72 applied only to
policies issued after January 1, 2013: private correspondence
between DOI counsel and insurers, and DOI’s System for
Electronic and Form Filing (SERFF) “ ‘Instructions for
Complying with [Assembly Bill No.] 1747.’ ” (McHugh, at p.
1172.) It then determined that the statutes’ language supported
DOI’s purported interpretation. (Id. at pp. 1175–1177.)
We granted review to resolve whether (1) sections
10113.71 and 10113.72 apply to all life insurance policies in
force as of January 1, 2013 — regardless of when those policies
had originally been issued — or only to policies that went into
effect after this date; and (2) the Court of Appeal properly
deferred to DOI guidance in its analysis.
II.
The grace period and notice requirements governing life
insurance policies issued before January 1, 2013 depend on
whether sections 10113.71 and 10113.72 apply to such policies.
To understand the effects of these provisions, we begin by
surveying the mechanics of life insurance and the broad legal
framework governing such policies.
A.
A life insurance policy “is a contract of indemnity under
which, in exchange for the payment of premiums, the insurer
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
promises to pay a sum of money to the designated beneficiary
upon the death of the named insured.” (Fairbanks v. Superior
Court (2009) 46 Cal.4th 56, 61.) There are two main categories
of life insurance. (See Fairbanks v. Farmers New World Life Ins.
Co. (2011) 197 Cal.App.4th 544, 547–548 & fn. 3 (Fairbanks);
Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178
Cal.App.4th 830, 834.) Cash value life insurance provides
“ ‘insurance’ ” in the form of a death benefit for designated
beneficiaries upon the policy owner’s death, as well as “ ‘cash
value’ ” savings that accumulate and are available during the
policy owner’s lifetime. (Kaldenbach, at p. 834.) Term life
insurance, which McHugh purchased, provides only a death
benefit, and it does so only for a set duration of years.
(Fairbanks, at p. 547.) It does not accrue and pay out a cash
value. (Estate of Logan (1987) 191 Cal.App.3d 319, 324; see also
Logue, The Current Life Insurance Crisis: How the Law Should
Respond (2002) 32 Cumb. L.Rev. 1, 17 [“A characteristic of term
life insurance is that if the insured fails to renew or cancels his
policy, the coverage will cease and any premiums that have been
paid (and earned) will not be refunded”].)
Despite the differences between term and cash value life
insurance, the importance of one aspect of insurance for the
larger public remains relatively constant across policy types:
Consumers often find it very difficult and costly to replace a
policy, including one that has been cancelled because of a missed
premium payment. They may need to spend money so they can
purchase a new policy; they may be forced to pay more expensive
premiums because they are being insured at an older age and
possibly after having developed health conditions; they may
need to pay commission charges and similar fees; they may be
forced to live with new incontestability or suicide clauses; and
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
they may be barred from accessing the cash value in their new
policy for a considerable time. (See, e.g., In re Prudential Ins.
Co. of Am. Sales Practice Litig. (3d Cir. 2001) 261 F.3d 355, 359,
fn. 2; Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14
Cal.App.5th 841, 867, fn. 25; DOI, Life Insurance Guide 2 [as of Aug. 30, 2021]; cf. Wilner v. Sunset
Life Ins. Co. (2000) 78 Cal.App.4th 952, 965–967.)
In part because of these consequences, the insurance
business is a matter of public interest. (Calfarm Ins. Co. v.
Deukmejian (1989) 48 Cal.3d 805, 830 (Calfarm); see also 20th
Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247,
1265 & fn. 9.) So insurance contracts are subject to substantial
regulation under the state’s police power. (Calfarm, at p. 830.)
The state regulates insurance contracts primarily through the
Insurance Code. Policies may be required by the code to include
certain provisions, and these provisions are deemed to be
incorporated into every policy to which they pertain. (California
Fair Plan Assn. v. Garnes (2017) 11 Cal.App.5th 1276, 1305,
1309.) The laws in effect at the time of a policy’s issuance
generally govern the policy. (See Interinsurance Exchange of the
Auto. Club of Southern Calif. v. Ohio Cas. Ins. Co. (1962) 58
Cal.2d 142, 148 (Interinsurance Exchange); 2 Witkin, Summary
of Cal. Law (11th ed. 2017) Insurance, § 10, p. 44.) This general
rule promotes certainty in the commercial and legal relationship
between insurers and insureds. (See Swenson v. File (1970) 3
Cal.3d 389, 394–395.) Subject to certain constitutional
2
All Internet citations in this opinion are archived by year,
docket number, and case name at .
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
guardrails, the state may exercise its police power to enact
legislation that affects existing policies. (Calfarm, at pp. 814–
815, 829–831.)
At the time Protective Life issued McHugh’s policy, the
Insurance Code provided (and continues to provide) that
insurers can cancel policies when policy owners fail to pay the
premium owed. (§ 484.) The code did not require life insurers
to provide notice when cancelling a policy, including for
nonpayment of a premium (see Stewart v. Life Ins. Co. of North
America (E.D. Cal. 2005) 388 F.Supp.2d 1138, 1142), even
though insurers were responsible for providing notice when
cancelling other forms of insurance (see, e.g., § 662, subd. (a) [for
automobile policies]; 2 Witkin, Summary of Cal. Law, supra,
Insurance, § 319, pp. 493–494). But the terms of the policy may
create a duty for insurers to provide cancellation notices, or
insurers may provide such notices as a general business
practice, as Protective Life did. (See 16 Williston on Contracts
(4th ed. 2014) § 49:85, pp. 728–731.) Such notice protects policy
owners from losing coverage due to their neglect (5 Couch on
Insurance (3d ed. 2012) § 76:23, p. 76-52) or enables them to
obtain insurance elsewhere before being subject to risk without
protection (2 Couch on Insurance (3d ed. 2010) § 32:1, p. 32-7).
Moreover, at the time Protective Life issued McHugh’s
policy, the Insurance Code did not require life insurers to
provide a grace period before cancelling a life insurance policy
for premium nonpayment. But life insurers could, as Protective
Life did, provide a grace period as a contractual provision and
business practice. (See 5 Couch on Insurance, supra, § 76:47, p.
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
76-90.)3 A grace period offers an obvious benefit to policy
owners: time to pay a missed premium without an interruption
in coverage. (16 Williston on Contracts, supra, § 49:80, p. 699;
see Pediatricians, Inc. v. Provident Life & Acc. Ins. Co. (1st Cir.
1992) 965 F.2d 1164, 1168 (Pediatricians).) Grace periods can
also provide a business advantage to insurers. Of course,
insurers depend on the regular, timely payment of premiums in
order to pay death benefits and cover the cost of administering
policies. (See New York Life Ins. Co. v. Statham (1876) 93 U.S.
24, 30 [“[I]t must be conceded that promptness of payment is
essential in the business of life insurance. All the calculations
of the insurance company are based on the hypothesis of prompt
payments”]; 16 Williston on Contracts, supra, § 49:75, p. 655.)
But grace periods decrease the probability that policy owners
will terminate the policy accidentally or because of temporary
financial difficulties, and thus increase the likelihood that policy
owners will continue the insurance in effect, providing the
insurer not just with the premium then due but also future
premiums. (16 Williston on Contracts, supra, § 49:80, pp. 699–
700; Pickens v. State Farm Mut. Auto. Ins. Co. (S.C. 1965) 144
S.E.2d 68, 71; Pediatricians, at pp. 1168–1169.)
B.
In 2012, the Legislature enacted Assembly Bill No. 1747
(2011–2012 Reg. Sess.), grafting sections 10113.71 and 10113.72
onto the Insurance Code. (Stats. 2012, ch. 315, §§ 1, 2.) These
3
The 31-day grace period Protective Life provided typifies
the grace periods found in many policies. (16 Williston on
Contracts, supra, § 49:80, p. 699.) California regulations at the
time provided for a 31-day grace period. (Cal. Code Regs., tit.
10, § 2534.3.)
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
provisions, enacted after Protective Life issued McHugh’s policy
but before it cancelled the policy, changed the grace period and
notice requirements for life insurance policies in California.
Section 10113.71 established a 60-day grace period after a
missed premium. Subdivision (a) states: “Each life insurance
policy issued or delivered in this state shall contain a provision
for a grace period of not less than 60 days from the premium due
date. The 60-day grace period shall not run concurrently with
the period of paid coverage. The provision shall provide that the
policy shall remain in force during the grace period.” 4
(§ 10113.71, subd. (a).) The section also requires insurers to
notify policy owners, as well as persons designated by the policy
owners to receive notice (under section 10113.72), at least 30
days before terminating a policy due to a payment lapse.
(§ 10113.71, subd. (b)(1).) Subdivision (b)(1) states: “A notice of
pending lapse and termination of a life insurance policy shall
not be effective unless mailed by the insurer to the named policy
owner, a designee named pursuant to Section 10113.72 for an
individual life insurance policy, and a known assignee or other
person having an interest in the individual life insurance policy,
at least 30 days prior to the effective date of termination if
termination is for nonpayment of premium.” (Ibid.) And
subdivision (b)(3) mandates that the “[n]otice shall be given to
the policy owner and to the designee by first-class United States
4
As originally enacted, section 10113.71, subdivision (a)
began with “Every” instead of “Each.” (Stats. 2012, ch. 315, § 1.)
The Legislature amended the subdivision as part of a code
maintenance bill making “nonsubstantive changes” to various
provisions of law. (Legis. Counsel’s Dig., Assem. Bill No. 383
(2013–2014 Reg. Sess.); see also Stats. 2013, ch. 76, § 137.)
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
mail within 30 days after a premium is due and unpaid.”
(§ 10113.71, subd. (b)(3).)
Section 10113.72 requires life insurance policies to grant
policy owners the right to designate at least one other person to
receive a notice of an overdue premium and impending lapse or
termination of the policy. In subdivision (a), it provides that
“[a]n individual life insurance policy shall not be issued or
delivered in this state until the applicant has been given the
right to designate at least one person, in addition to the
applicant, to receive notice of lapse or termination of a policy for
nonpayment of premium.” (§ 10113.72, subd. (a).) It also
explains that “the insurer shall provide each applicant with a
form to make the designation,” and that this form must provide
the applicant with the opportunity “to submit the name,
address, and telephone number of at least one person, in
addition to the applicant, who is to receive notice of lapse or
termination of the policy for nonpayment of premium.” (Ibid.)
Subdivision (b) provides that insurers “shall notify the policy
owner annually of the right to change the written designation or
designate one or more persons,” and that policy owners may
elect to change the designation more often if they choose to do
so. (§ 10113.72, subd. (b).) Finally, subdivision (c) prevents an
insurer from ending a policy for an unpaid premium without
giving policy owners at least 30 days’ notice. It mandates that
no policy “shall lapse or be terminated” for an unpaid premium
“unless the insurer, at least 30 days prior to the effective date of
the lapse or termination, gives notice to the policy owner and to
the person or persons designated pursuant to subdivision
(a) . . . .” (§ 10113.72, subd. (c).)
Both of these sections went into effect on January 1, 2013.
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Opinion of the Court by Cuéllar, J.
III.
Protective Life maintains that the two new statutes have
no effect on insurance contracts issued or delivered before
January 1, 2013. This case turns on whether the appellate court
was right to embrace that conclusion. To resolve this question,
we begin by reviewing de novo the Court of Appeal’s
interpretation of sections 10113.71 and 10113.72. (Kirby v.
Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1250.) As
with any question of statutory construction, our core task here
is to determine and give effect to the Legislature’s underlying
purpose in enacting the statutes at issue. (California Teachers
Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d
692, 698; Calatayud v. State of California (1998) 18 Cal.4th
1057, 1065; Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
We first consider the words of the statutes, as statutory
language is generally the most reliable indicator of legislation’s
intended purpose. (In re H.W. (2019) 6 Cal.5th 1068, 1073
(H.W.).) We consider the ordinary meaning of the relevant
terms, related provisions, terms used in other parts of the
statute, and the structure of the statutory scheme. (Larkin v.
Workers’ Comp. Appeals Bd. (2015) 62 Cal.4th 152, 157.) If the
relevant statutory language is ambiguous, we look to
appropriate extrinsic sources, including the legislative history,
for further insights. (H.W., at p. 1073.) We also extend some
deference to DOI’s interpretations of the Insurance Code, to the
extent that those interpretations are embodied in quasi-
legislative regulations or constitute long-standing, consistent,
and contemporaneous interpretations. (See, e.g., Yamaha Corp.
of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12–
13 (Yamaha); Farmers Ins. Exch. v. Superior Court (2006) 137
Cal.App.4th 842, 859.)
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
A.
The Court of Appeal framed its analysis by relying on a
general interpretive principle: the rebuttable presumption that
a statute does not operate retroactively, and instead operates on
a prospective basis only. (Myers v. Philip Morris Companies,
Inc. (2002) 28 Cal.4th 828, 844 (Myers).) The Court of Appeal
presupposed that applying sections 10113.71 and 10113.72 to
McHugh’s policy was, in fact, retroactive for purposes of
applying the presumption against retroactivity. Its only brush
with this threshold question came toward the end of its analysis,
where — seeking to tether its statutory analysis to
constitutional principles — the appellate court explained that
well-settled law dictated that “McHugh’s policy is governed by
the regulations in effect when it was issued in 2005, and the
subsequently enacted sections 10113.71 and 10113.72 are not
incorporated into the policy.” (McHugh, supra, 40 Cal.App.5th
at p. 1177.) The court’s assumption appears to have been that
applying the sections here was retroactive because they imposed
new grace period and notice obligations nowhere found in the
2005 regulations, which governed already-existing policies and
lacked these grace period and notice requirements.
Applying the presumption against retroactivity, the court
emphasized what it took to be the principle’s requirements —
that “ ‘a statute may be applied retroactively only if it contains
express language of retroactivity or if other sources provide a
clear and unavoidable implication that the Legislature intended
retroactive application.’ ” (McHugh, supra, 40 Cal.App.5th at p.
1174, quoting Myers, supra, 28 Cal.4th at p. 844, italics added
by Myers.) It then concluded that there was no basis to rebut
the presumption. (McHugh, at p. 1174.)
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Protective Life reiterates and expands upon the Court of
Appeal’s analysis. Regarding whether we face a question of
“retroactivity”: Protective Life invokes Interinsurance
Exchange, supra, 58 Cal.2d at page 148 to urge that reading the
grace period and notice protections into McHugh’s policy would
be a retroactive application, since insurance policies are
putatively governed by the law in effect when they are issued.
Because no statutory law pre-2013 created grace period and
notice requirements related to missed life insurance premiums,
what Protective Life is arguing, then, is that the absence of
regulation should be read into McHugh’s policy, and that
holding otherwise would be to rewrite the policy.
Plaintiffs argue, however, that this case involves an
entirely prospective statutory application because they seek no
more than application of the grace period and notice
requirements to missed premium payments occurring after
sections 10113.71 and 10113.72 went into effect. In other words,
plaintiffs argue that this case merely concerns Protective Life’s
postenactment conduct with respect to policies in force as of
January 1, 2013. They contend that this statutory application
is not “retroactive” at all because it does not materially alter the
contractual agreement memorialized in McHugh’s policy, and
similarly situated policies, in a way that unfairly undermines
the parties’ reliance interests. In the alternative, plaintiffs
argue that this statutory application does not implicate
principles of retroactivity because any retroactive effect here is
minimal and will not substantially impair any vested
contractual rights.
We find support for both of plaintiffs’ arguments. Our
previous decisions buttress plaintiffs’ understanding of the
presumption against retroactivity, and whether it even applies.
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We conclude that under either alternative theory, the
interpretive presumption does not vindicate Protective Life’s
position.
1.
The presumption against retroactivity is, at core, a canon
to facilitate interpretation rather than an inexorable command.
(People v. Superior Ct. (Lara) (2018) 4 Cal.5th 299, 307; see
Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001,
1013.) In cases where the presumption is potentially implicated,
we must consider both its overall role — helping guide us in our
core endeavor of determining and giving full effect to a statute’s
underlying purpose — and the specific premise for applying it in
that particular case. (People v. Garcia (2016) 62 Cal.4th 1116,
1124; see Tapia v. Superior Ct. (1991) 53 Cal.3d 282, 301
(Tapia); Fox v. Alexis (1985) 38 Cal.3d 621, 629.) We apply the
presumption in the absence of explicit legislative indications of
retroactivity, doing so based on the fundamental fairness
considerations raised by “ ‘imposing new burdens on persons
after the fact.’ ” (McClung v. Employment Development Dept.
(2004) 34 Cal.4th 467, 475 (McClung); see id. at p. 476
[“ ‘Requiring clear intent assures that [the legislative body]
itself has affirmatively considered the potential unfairness of
retroactive application and determined that it is an acceptable
price to pay for the countervailing benefits’ ”].)
These considerations influence the threshold question
courts must answer before even applying the presumption
against retroactivity: Is the statutory change in question
“ ‘retroactive’ ” or “ ‘prospective’ ”? (Californians for Disability
Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230 (Mervyn’s).)
In theory, these concepts are simple; in practice, they often
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
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prove more elusive. To distinguish between “retroactive” and
“prospective” statutory applications, we explained the need to
deploy the following standard: “We must consider ‘ “ ‘the nature
and extent of the change in the law and the degree of connection
between the operation of the new rule and a relevant past
event’ ” ’ ”; “ ‘ “ ‘familiar considerations of fair notice, reasonable
reliance, and settled expectations offer sound guidance.’ ” ’ ”
(Quarry v. Doe I (2012) 53 Cal.4th 945, 955 (Quarry).) In
keeping with these principles, we have generally explained that
a new law operates “retroactively” when it changes “ ‘ “the legal
consequences of past conduct by imposing new or different
liabilities based upon such conduct.” ’ ” (Mervyn’s, at p. 231.)
We have asked whether the new law “ ‘ “substantially affect[s]
existing rights and obligations.” ’ ” (Ibid., italics added.)
Plaintiffs advance this understanding of retroactivity. Yet some
of our cases can potentially be read to articulate a broader
definition of retroactivity, which Protective Life argues we
should apply. In Myers, for example, we stated that a statute
operates retroactively when it “ ‘ “affects rights, obligations,
acts, transactions and conditions which are performed or exist
prior to the adoption of the statute.” ’ ” (Myers, supra, 28 Cal.4th
at p. 839, quoting Aetna Cas. & Sur. Co. v. Ind. Acc. Com. (1947)
30 Cal.2d 388, 391 (Aetna).) This broader definition seems to
embrace any conceivable statutory impact on the terms of an
existing contract — including an insurance contract — as
Protective Life urges.
The two differing conceptions of “retroactivity” at play
underscore why the term and its antonym “are not always easy
to apply to a given statute.” (Quarry, supra, 53 Cal.4th at p.
955; see 2 Sutherland, Statutes and Statutory Construction (7th
ed. 2009) § 41:1, p. 385.) Established precedent nonetheless
16
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
helps us clarify any potential ambiguity and strongly favors
plaintiffs’ retroactivity approach.
Consistent with the presumption’s underlying logic, our
cases defining “retroactivity” have principally focused on
whether the statutory change in question significantly alters
settled expectations: by changing the legal consequences of past
events, or vitiating substantial rights established by prior law.
(See, e.g., Quarry, supra, 53 Cal.4th at p. 956; Strauss v.
Horton (2009) 46 Cal.4th 364, 472; Elsner v. Uveges (2004) 34
Cal.4th 915, 937; McClung, supra, 34 Cal.4th at p. 472; Tapia,
supra, 53 Cal.3d at p. 290; see also Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 243 (Western) [a
retroactive statute “substantially changes the legal
consequences of past events,” and “[a] statute does not operate
retrospectively simply because its application depends on facts
or conditions existing before its enactment”]; Landgraf v. USI
Film Products (1994) 511 U.S. 244, 266, 269–270 (Landgraf)
[similar].) Even Myers, supra, 28 Cal.4th at page 839 followed
up its potentially more expansive articulation of “retroactivity”
by explaining that, “[p]hrased another way, a statute that
operates to ‘increase a party’s liability for past conduct’ is
retroactive.” Leading cases addressing “retroactive” legislation
have confronted such changes in settled expectations.
This was true, for example, of the amendments to title VII
of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) at issue
in Landgraf, supra, 511 U.S. 244. The changes matched new
remedies to certain statutory violations. (Ibid.) Courts have
also turned to drawing the retroactivity-no retroactivity line
with respect to the new certificate requirement for Chinese
nationals’ reentry in Chew Heong v. United States (1884) 112
U.S. 536 (discussed in Landgraf, at pp. 271–272); the new
17
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
liability rule added by Proposition 51 (adopted by voters in June
1986) in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188;
the increased worker compensation benefits in Aetna, supra, 30
Cal.2d 388; and, finally, the repeal of statutory tort immunity
for tobacco companies in Myers, supra, 28 Cal.4th 828. The
changes wrought by sections 10113.71 and 10113.72, by
contrast, do not disrupt clearly settled expectations in such
fashion — so it’s not clear they operate “retroactively” at all.
To wit: The grace period and notice obligations added by
sections 10113.71 and 10113.72 do not impact a life insurer’s
liability for past, preenactment defaults. Nothing in these
sections compels insurers to reinstate any policy cancelled
preenactment less than 60 days after a missed premium
payment. Nor do the changes otherwise impinge on a
contracting party’s substantial rights or unfairly upset the
bargain memorialized in the insurance policy, for example, by
requiring an insurer to provide substantially expanded coverage
without also giving it an opportunity to raise premiums. (Cf.
Interinsurance Exchange, supra, 58 Cal.2d at p. 148
[“retroactive” statutory change would have repealed a rule
requiring a mandatory provision in automobile insurance
policies covering certain permittees; if applied to previously
negotiated contracts, this change would have upended the
bargain struck].) The grace period and notice rules make
relatively cabined, procedural changes to how insurers
administer policies routinely subject to public regulation — they
require insurers to provide policy owners with limited but
critical safeguards to avoid defaulting. These new rules affect
contractual relationships in a field pervasively “ ‘affected with a
public interest,’ ” and thereby already heavily regulated by the
state. (Calfarm, supra, 48 Cal.3d at p. 830.) And these rules do
18
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
not unfairly “rewrite” existing policies, as Protective Life
suggests. They instead merely impose additional rules on
insurers as a condition of doing business in California — rules
that govern insurers’ conduct postenactment when, in the
future, one of their policy owners misses a premium payment.5
The context matters. Where a new law makes only
moderate, procedural-type adjustments to the rules for conduct
that will apply in the event of some future circumstance, in an
already highly regulated contractual relationship, the new law’s
application to existing contracts could be regarded as
prospective rather than retroactive for purposes of the
presumption. To say the least, this type of statutory application
falls well short of the quintessential understanding of
“retroactivity” — the disruption of settled expectations because
a statutory change “ ‘imposes a new or additional liability and
substantially affects existing rights and obligations’ ” — that
can be reasonably gleaned from leading cases such as Tapia,
supra, 53 Cal.3d at page 290. The concurrence fails to fully
grapple with this established body of law. (Conc. opn., post, at
5
Sections 10113.71, subdivision (b) and 10113.72,
subdivision (c) frame their notice obligations as requirements
insurers must observe before terminating policies. Section
10113.71, subdivision (a) arguably operates differently because
it mandates that policies include a 60-day grace period
provision. That particular way to frame the policies, and the
fact that McHugh’s policy already contained a 31-day grace
period, may imply to some observers that the subdivision
operates here by formally altering an existing contract. But
given that the provision does not operate on already-defaulted
policies before enactment, it’s not clear that it differs in any
substantive way from a provision simply requiring all insurers
to, going forward, observe a pretermination 60-day grace period.
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
pp. 8–9 [contending only that the majority fails to identify a
sufficiently analogous case].)
An analogous case drives home our conclusion. In
Mervyn’s, supra, 39 Cal.4th 223, we addressed whether
Proposition 64’s rule, which restricted standing to bring an
unfair competition law claim to plaintiffs who have suffered an
injury in fact and have lost money or property, applied to
pending cases. (Mervyn’s, at pp. 227–228 [law had previously
authorized any person acting for the general public to sue, and
Prop. 64, approved by voters in November 2, 2004, deleted this
language].) We held that applying the proposition to pending
cases “is not to apply [it] ‘retroactively,’ as we have defined that
term, because the measure does not change the legal
consequences of past conduct by imposing new or different
liabilities based on such conduct.” (Mervyn’s, at p. 232; see id.
at p. 231 [distinguishing Myers, supra, 28 Cal.4th at p. 240,
where the new law “subjected tobacco sellers to tort liability for
acts performed at a time when they enjoyed the protection of an
immunity statute”].)
So too here. The grace period and notice provisions at
issue here simply dictate the procedures for terminating policies
after January 1, 2013. Applying the provisions to policies
already in effect on that date does not appear to impose new or
different liabilities based on earlier conduct. (See also Pitts v.
Perluss (1962) 58 Cal.2d 824, 835 (Pitts) [similar reasoning with
respect to a regulation preventing substantial adverse selection
of risks by private insurance companies, as the “regulation looks
solely to the future; it provides that the future operation of the
plans comply with the standards. No sanction or penalty
attaches to any past act of the companies; the companies need
only discontinue one or more existing noncomplying plans or
20
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
establish complying ones”]; see id. at p. 836 [distinguishing,
inter alia, Interinsurance Exchange, supra, 58 Cal.2d 142 and
Aetna, supra, 30 Cal.2d 388, because those cases involved
attempts “to apply the new law of today to the conduct of
yesterday”].)
Protective Life contends that some of our cases support a
different conclusion: that any impact on the terms of an existing
contract represents a retroactive change for purposes of
applying the presumption. Our precedent more readily
establishes a different proposition. The mere fact that a new
law somehow implicates an existing contract does not, by itself,
make the law retroactive. (See Western, supra, 15 Cal.4th at p.
243.) The key is the nature of the new law’s impact — whether
it works a substantial change in the contracting parties’ rights
or obligations. (See, e.g., Tapia, supra, 53 Cal.3d at p. 290.) It’s
far from clear that any of the effects identified by Protective Life
and industry amici curiae rise to this level.
Protective Life argues simply that applying the grace
period and notice requirements to McHugh’s policy and others
like it goes against contractual counterparties’ strong interests
in avoiding unexpected shifts in their legal relationship. It
asserts, as a general matter, that “[t]he agreed-to premium
pricing reflected, among other things, the grace period and
notice provisions in the policies.” Protective Life’s argument
ultimately boils down to an assertion of its expectations that
sections 10113.71 and 10113.72 would not apply to previously
enacted policies: It expected these policies to be governed by
“the old rules” and can’t now change premiums to account for
the new rules. We question the prudence of this expectation,
since, as we have previously observed, the “highly regulated”
nature of the insurance industry means that “further
21
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
regulation” on policies by the Legislature “can reasonably be
anticipated.” (Calfarm, supra, 48 Cal.3d at p. 830.) Even
setting this aside, though, Protective Life’s argument fails to
persuade. The insurer’s generalized, amorphous allusion to
financial impact does not specifically identify any way in which
the bargain memorialized in the insurance contract would be
substantially upset by applying the grace period and notice
provisions to future cancellations of policies issued before
January 1, 2013.
Industry amici curiae’s further arguments, though more
substantiated, also fail to persuade. The Chamber of Commerce
emphasizes that insurers will have to “devote resources” to
complying with the notice provisions. But any such resources
would seem to be minimal. Notice of the designation right need
only be provided annually and can be sent together with a billing
statement. As to pretermination notice, it is standard industry
practice to provide some notice before terminating an insurance
policy for nonpayment of a premium. (Ante, at p. 8.) Indeed,
although McHugh’s policy did not require any pretermination
notice, Protective Life sent McHugh letters reminding him that
his payment was due, informing him that his payment was late,
and then informing him that his policy had lapsed but could be
reinstated. The American Council of Life Insurers points out
that if the insured dies during the extended grace period, the
insurer will be required to pay benefits for which it has not
received a premium. But this burden is at least somewhat
offset, since the insurer would be entitled to deduct the unpaid
premium payment from any life insurance benefits it pays out.
Under the circumstances presented, there appears to be
only one way an insurer could incur a significant unaccounted-
for loss because of sections 10113.71 and 10113.72: If the grace
22
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
period and notice provisions prevent inadvertent defaults that
the insurer had anticipated and baked into its rates — that,
after all, is the problem the provisions were designed to address.
If, however, insurers did not specifically account for a projected
rate of inadvertent default when setting their rates, then any
such default would result in a windfall to the insurer. As
amicus curiae California Advocates for Nursing Home Reform,
Inc., explains: A windfall, or “ ‘Lapse Profit,’ ” arises when a
policy owner’s missed premium payment allows the insurers to
“ ‘pocket’ years of premium[s],” potentially totaling several
thousands of dollars, and “simply walk away from any obligation
[to] pay anything to [its] ‘former client[].’ ” One additional
consideration for why a windfall may occur: Premiums in a
policy’s earlier years exceed the cost of providing coverage.
(Fairbanks, supra, 197 Cal.App.4th at pp. 547–548.)6
Here, neither Protective Life nor amici curiae argue that
insurers accounted for a particular rate of inadvertent default
in setting premiums before January 1, 2013. Though they
generally reference premium pricing and financial projections,
they do not specifically claim to have included in their rate-
setting calculations an anticipated percentage of policy owners
who, due to illness, incapacity, or other factors, would fail to pay
their premiums and lose coverage, thereby relieving the
insurers from the obligation to pay out death benefits. In fact,
Protective Life argued at trial — and the jury accepted — that
the notices and grace period it actually provided to McHugh
substantially complied with and largely replicated sections
6
We recognize that, theoretically, some number of policy
owners might deliberately allow a policy to lapse rather than
cancelling it to maintain coverage during the grace period.
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
10113.71 and 10113.72. Taken together, the arguments offered
fall short of clearly showing how the sections’ new protections
constituted a disruptive contract change of the sort that would
qualify as “retroactive” under our precedent.
2.
If it’s far from obvious that applying sections 10113.71 and
10113.72 to existing life insurance policies is retroactive under
well-settled case law, it’s also clear that Protective Life’s
argument about the scope of these two new sections still fails to
persuade us even if one considered the provisions in question to
have some retroactive effect. For some observers, the statutory
changes in question might be considered to go beyond nominal
or trivial alterations to existing contracts. To the extent some
of our cases can be read to suggest a broader understanding of
“retroactivity” — one potentially embracing any statutory
impact on an existing insurance contract (see Myers, supra, 28
Cal.4th at p. 839) — our precedent nonetheless still supports a
conclusion in plaintiffs’ favor.
As plaintiffs argue, even if applying sections 10113.71 and
10113.72 in this case is retroactive, it is retroactive only in a
relatively narrow sense. True: The sections, if applied to
preenactment policies, do create new rules for insurers in
administering these policies. Because the grace period and
notice provisions expand insurers’ pretermination requirements
beyond the bargained-for policy terms, they technically affect
“ ‘ “rights, obligations, acts, transactions and conditions” in
existence “prior to the adoption of the [sections].” ’ ” (Myers,
supra, 28 Cal.4th at p. 839.) But, for the same reasons that one
could conclude this case does not present a question of
retroactivity, we determine that any nominal retroactive effect
24
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
arguably at issue here plainly fails to present the type of concern
underlying the application of the presumption as we have
ordinarily understood it.
The retroactivity presumption is not a “straitjacket.” (In
re Estrada (1965) 63 Cal.2d 740, 746.) Nothing in our cases calls
on us to apply the presumption for any conceivable type of
preenactment impact, however slight. Instead, our case law
calls for application of the presumption where applying the new
law implicates fundamental fairness concerns, including by
“foist[ing] upon past conduct new and onerous legal
consequences.” (Pitts, supra, 58 Cal.2d at pp. 835–836.) In
Myers, supra, 28 Cal.4th 828, for instance, the retroactive legal
change in question subjected tobacco sellers to tort liability for
prior acts performed when they enjoyed the protection of an
immunity statute. (See also Tapia, supra, 53 Cal.3d at pp. 297–
299 [retroactive legal change subjected persons to increased
punishment for past criminal conduct, or to punishment for past
conduct not formerly defined as criminal].) By contrast, the new
grace period and notice requirements do not thrust new legal
consequences onto Protective Life’s preenactment policy
terminations or otherwise appear to cause the insurer to bear
significant and unanticipated costs for its pre-2013 policies.
Instead, the new rules simply updated how the regulatory
system governing life insurance terminations treats all policies
going forward. Therefore, insofar as these new rules operate
“retroactively,” that is not the type of retroactivity that warrants
our usual level of reluctance to construe statutes retroactively.
In summary, this case may be viewed as not involving
“retroactivity” as our cases have generally defined the term, or
alternatively as involving retroactivity only in a narrow sense —
one different from the type of preenactment impact at the
25
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
heartland of the presumption’s concerns and at issue in cases
applying the presumption. We need not choose between the two
views. Under either, we decline to give the presumption such
weight that it determines the outcome of this case.
B.
Having explored the presumption against retroactivity,
the broader interpretive question remains: whether sections
10113.71 and 10113.72 apply to McHugh’s policy and similarly
situated ones. We conclude that they do.
Before engaging in our interpretive analysis, we make one
brief observation: As the concurrence implies, our precedent
leaves open the possibility of simply assuming that this case
presents an instance of retroactivity and therefore merits
application of the presumption against retroactivity. (Conc.
opn., post, at pp. 6–7.) And if the presumption applies with its
ordinary weight, the indicia of legislative purpose here could
rebut it. (See, e.g., id. at pp. 3–4 [emphasizing the breadth of
the statutory language]; id. at pp. 5–6 [highlighting the
legislative history discussion of problems facing existing
policyholders]; cf. post, at pp. 33–37.)
But the most thorough approach, consistent with previous
cases, is to address a threshold question: whether sections
10113.71 and 10113.72 even create retroactive changes for
purposes of the presumption. (Ante, at p. 15.) That way, we
avoid having to apply the canon in a circumstance where it’s not
necessary, and where our cases do not definitively indicate that
the presumption has been rebutted. (Compare conc. opn., post,
at pp. 5–6 with McClung, supra, 34 Cal.4th at p. 475
[presumption not rebutted where legislative history lacked
retroactivity discussion].)
26
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
1.
We start with the statutory language. (H.W., supra, 6
Cal.5th at p. 1073.)
On the one hand, broadly applicable language found in
many of the sections’ subdivisions, and the absence of any
temporal qualifiers in this language, supports plaintiffs’
argument that the sections apply to all policies in force as of
January 1, 2013. On the other hand, different parts of the
provisions plausibly favor the interpretations urged by both
parties. One provision, section 10113.72, subdivision (a),
unmistakably applies only to new policies; but some provisions
likely seem to apply to both new and existing policies, and some
could be read either way. Because the parties’ linguistic parsing
at times plausibly cut in opposing directions, and because we
must interpret these provisions as a package, the net effect is
one of some potential statutory ambiguity. To see why, consider
each provision in turn.
Section 10113.72, subdivision (a) relates to the right to
designate at least one third party recipient to receive a missed
premium notice. This provision applies only to new,
postenactment policies. (McHugh, supra, 40 Cal.App.5th at pp.
1174–1175.) The language refers repeatedly to the “applicant”
making a written designation, rather than the “policy owner,”
clearly indicating it applies only to new policies. (§ 10113.72,
subd. (a).) Protective Life also persuasively argues that the
particular phrasing of subdivision (a)’s command — it instructs
that a policy “shall not be issued or delivered . . . until” an
applicant has been given the written designation right —
further supports that it applies only to new policies as of 2013,
since “shall be” commands often signify a statute’s forward-
27
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
looking nature. (Ibid., italics added; cf. Russell v. Superior
Court (1986) 185 Cal.App.3d 810, 818–819.)
But subdivision (b) of section 10113.72 does not refer to
“applicant[s],” nor does it use “shall be” language. The
subdivision requires insurers to annually notify “policy
owner[s]” for their right to update and change their third party
notice designation. (§ 10113.72, subd. (b).) It could easily apply
to both new policies and those already in force as of January 1,
2013. The subdivision provides an opportunity for the policy
owner on an existing policy with no designation to “designate
one or more persons” (ibid.) — a right that could apply
regardless of when the policy was issued. (See Bentley v. United
of Omaha Life Ins. Co. (C.D. Cal., June 22, 2016, No. CV15-7870-
DMG (AJWx)) 2016 WL 7443189, p. *4 (Bentley).) Indeed, as
plaintiffs persuasively argue, nothing in this language appears
to limit this right only to those “policy owners” who purchased
insurance postenactment. (See ibid.)
Even so, we can’t determine for sure from the isolated
language of section 10113.72, subdivision (b) that the
designation right unambiguously applies to all policies.
Protective Life counters plaintiffs’ plausible reading of
subdivision (b) with its own potentially tenable interpretation:
Subdivision (b) does not create a freestanding designation right,
but instead repeatedly refers back to and builds off its
immediately preceding provision, subdivision (a) — discussing
“[t]he insurer,” “the policy owner,” “the right,” “the designation,”
and “change[s]” to the designation. (§ 10113.72, subd. (b).) In
other words, subdivision (b) can be read to merely clarify the
scope of subdivision (a) by requiring that “applicant[s]” who are
now “policy owner[s]” be advised that they may exercise the
right to designate by changing or initially naming a designee.
28
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
Plaintiffs likely offer the better interpretation, as it gives full
effect to the several instances where subdivision (b) uses
meaningfully distinct language from subdivision (a). (See, e.g.,
Gomez v. Superior Court (2012) 54 Cal.4th 293, 304; Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1117.)7 Yet Protective Life also offers a tenable reading.
Far less ambiguity lurks in the notice provisions. Each
speaks universally, referring to “policy owner[s]” and describing
its requirement without any apparent limitation on the date of
issuance. (§§ 10113.71, subd. (b)(1), (3), 10113.72, subd. (c).)
Section 10113.71, subdivision (b)(1) states broadly that notice of
pending lapse and termination “shall not be effective unless
mailed by the insurer” to the policy owner, a designee, and a
known assignee “at least 30 days prior to the effective date of
termination.” Section 10113.71, subdivision (b)(3) also sweeps
broadly, requiring insurers to provide policy owners and
designees with notice “within 30 days after a premium is due
and unpaid.” Section 10113.72, subdivision (c) similarly
provides that “[n]o individual life insurance policy shall lapse or
be terminated for nonpayment of premium unless the insurer”
gives the requisite 30-day-minimum notice, and that “[n]otice
7
Section 10113.72, subdivision (b) differs from its precedent
subdivision in three ways: It (1) applies to a different
rightsholder (i.e., a policy owner, versus an applicant); (2)
describes the exercise of designation at a different point in time
(i.e., after the policy owner’s initial application, a timing which
permits both pre- and postenactment policy owners to exercise
their designation); and (3) creates a different obligation for
insurers (i.e., to notify policy owners annually regarding their
designation right, as opposed to providing applicants with a
designation form). (§ 10113.72, subds. (a), (b).)
29
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
shall be given . . . within 30 days after a premium is due and
unpaid.”
As Protective Life observes, however, the notice provisions
do include references to the designee for notice under section
10113.72, which suggests the two sets of provisions are meant
to work together. That introduces some ambiguity into our
reading of the notice provisions insofar as the designee
provisions can be considered ambiguous. If all of section
10113.72 were read to apply only to new contracts, that would
be some indication that the notice provisions apply only to new
contracts as well. But if the more likely reading is that
designations can also be made under existing contracts under
section 10113.72, subdivision (b), then we have little reason to
think that the notice provisions would be restricted to new
contracts. (We say little reason, rather than no reason, because
section 10113.72, subdivision (c)’s specific cross-reference to
subdivision (a) of the same section, and the absence of such a
specific cross-reference in section 10113.71, subdivision (b), does
slightly muddy the waters.) In any event, if no notice recipient
has yet been designated for a policy — which could, of course,
happen even in the case of a new policy — then the provisions
requiring notice to the designee are simply ineffective.
Finally, section 10113.71, subdivision (a) addresses the
grace period provision. Here too, we find support in its language
for both parties’ arguments.
Protective Life identifies language in section 10113.71,
subdivision (a) that appears future-oriented: The phrases “shall
contain” (each policy “shall contain a provision for a grace
period”) and “shall provide” (“The provision shall provide that
the policy shall remain in force during the grace period”) in
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MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
subdivision (a) suggest reference to a requirement for policies
yet to be issued. (See People v. Allied Architects’ Assn. (1927)
201 Cal. 428, 437.)
Plaintiffs reasonably respond, however, that “shall” in
10113.71, subdivision (a) represents a mandatory directive for
all policies (i.e., each policy must be read to contain a grace
period), rather than a temporal limitation on the policies to
which the grace period applies. (Evangelatos v. Superior Court,
supra, 44 Cal.3d at p. 1209, fn. 3; see People v. Ledesma (1997)
16 Cal.4th 90, 95 [“ ‘shall’ ” can be construed as either
mandatory or directory as well as denote future operation].)
Moreover, they persuasively analyze the past participle “issued
or delivered.” As used here in the phrase “[e]ach life insurance
policy issued or delivered in this state,” the reference to what’s
“issued or delivered” can simultaneously refer to past as well as
future events. (See Bernal v. NRA Grp. LLC (7th Cir. 2019) 930
F.3d 891, 895.)8
Considering section 10113.71, subdivision (a) in context
supports plaintiffs’ interpretation. (See People v. Garcia (2017)
2 Cal.5th 792, 805 (Garcia).) As Protective Life itself observes,
the grace period provision has an “intertwined” relationship
with the notice provisions. The Legislature evidently designed
8
The Court of Appeal relied on Ball v. California State
Auto. Assn. Inter-Ins. Bureau (1962) 201 Cal.App.2d 85, 87, to
read “ ‘issued or delivered’ ” as “customar[il]y” embracing only
postenactment policies. (McHugh, supra, 40 Cal.App.5th at p.
1176; see id. at p. 1175.) But nothing in our case law suggests
that Ball, which concerned a statute impacting automobile
liability policies, provides the type of “definitive judicial
construction” of the phrase “issued or delivered” that we can
presume the Legislature knew of and sought to adopt here.
(Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 675.)
31
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
the grace period to work in conjunction with the notice
provisions, which ensure policy owners and their designees
receive notification of a pending lapse and termination at least
30 days before the 60-day grace period has expired. (See Assem.
Com. on Insurance, Background Information Sheet for Assem.
Bill No. 1747 (2011–2012 Reg. Sess.) Feb. 27, 2012, p. 2.)
Indeed, it appears intentional that the two 30-day windows
provided by the notice provisions operate within and can add up
to the 60-day grace period: The insurer has up to 30 days after
a missed premium payment to give notice (§§ 10113.71, subd.
(b)(3), 10113.72, subd. (c)), and a separate 30 days that must
follow before a mailed notice becomes effective to terminate a
policy for nonpayment (see §§ 10113.71, subd. (b)(1), 10113.72,
subd. (c)). Given this relationship, it certainly seems sensible
that the grace period would, as the notice provisions appear to
do, apply universally.
Admittedly, the notice provisions can perhaps be capable
of operating independently of the grace period provision — the
former applying to all policies, the latter to new policies only.
The notice provisions themselves effectively establish a grace
period of 30 to 60 days. But it seems unlikely that the
Legislature meant for the notice provisions to drive the scope of
protections conferred for nonpayment in the class of cases
involving existing contracts, particularly since it did not draw
any express distinctions in any of the provisions on the basis of
policy issue date. It seems more reasonable to construe the
statutory provisions as a package, as either all applying to
existing contracts or not. That the provisions work together —
the notice provisions require sending notice to the policy owner
and an individual designated under the new designation
32
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
procedures, within the time frame established by the new grace-
period provision — reinforces our conclusion.
In view of how these provisions interact, the broadly
applicable language found in most of the relevant statutory
passages tends to cut in favor of plaintiffs’ interpretation. (Cf.
conc. opn., post, at pp. 3–4.) That said, Protective Life does
identify some language cutting in favor of its narrower
interpretation — and the statutory sections at issue stop short
of conclusively establishing precisely how the provisions work.
To resolve any potential ambiguity in the language, we must
look to other sources to determine whether, as plaintiffs argue,
the provisions’ intended purpose entails applying them to
existing contracts. (H.W., supra, 6 Cal.5th at p. 1073.)
2.
Other indicia of purpose, gleaned from context, resolve any
latent ambiguity in the language of sections 10113.71 and
10113.72. They indicate that the sections apply to all policies in
force as of January 1, 2013.
To begin with, the statutory sections appear to create a
single, unified pretermination notice scheme. This scheme
appears to include three components: (1) New and existing
policy owners must have the opportunity to designate additional
people to receive a notice of termination (§ 10113.72, subds. (a),
(b)); (2) policy owners and any designees must receive notice
within 30 days of a missed premium payment, and any
termination for nonpayment will not be effective unless insurers
send notice to these parties at least 30 days prior (§§ 10113.71,
subd. (b)(1), (3), 10113.72, subd. (c)); and (3) each policy has a
60-day grace period, which lines up with the two 30-day notice
windows (§ 10113.71, subd. (a)). In light of these new, detailed
33
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
statutory notice requirements, it seems doubtful the Legislature
contemplated that insurance companies would, going forward,
simultaneously implement two vastly different notice schemes:
one applying to pre-2013 policies that requires only 31-day
notices before termination and no right to designations, and a
post-2013 scheme as described. It thus seemed largely assumed
that insurance companies would implement the single, new
notice scheme, which would have the effect of benefitting both
new and existing policy owners.
The legislative history supports this conclusion. Those
involved in the legislative process seemed to take for granted a
single, standardized notice scheme. (See, e.g., Assem. Com. on
Insurance, 3d reading analysis of Assem. Bill No. 1747 (2011–
2012 Reg. Sess.) as amended May 9, 2012, p. 2.)
Moreover, the legislative history provides several
indications that the Legislature enacted the grace period and
notice protections in part to protect existing policy owners from
losing the important life insurance coverage they had spent
years paying for. The Assembly and Senate materials on
Assembly Bill No. 1747 (2011–2012 Reg. Sess.) include purpose
and supporting argument statements like the following:
“According to the author, the bill provides consumer safeguards
from which people who have purchased life insurance coverage,
especially seniors, would benefit. Under existing law,
individuals can easily lose the critical protection of life
insurance if a single premium is accidentally missed (even if
they have been paying premiums on time for many years). If an
insured individual loses coverage and wants it reinstated, he or
she may have to undergo a new physical exam and be
underwritten again, risking a significantly more expensive,
possibly unaffordable premium if his or her health has changed
34
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
in the years since purchasing the policy. Therefore, the
protections provided by [Assembly Bill No.] 1747 are intended
to make sure that policy owners have sufficient warning that
their premium may lapse due to nonpayment.” (Assem. Com. on
Insurance, Analysis of Assem. Bill No. 1747 (2011–2012 Reg.
Sess.) as amended Apr. 26, 2012, pp. 1–2, italics added
(hereafter Assem. Com. on Insurance Analysis); see also Sen.
Com. on Insurance, Analysis of Assem. Bill No. 1747 (2011–2012
Reg. Sess.) as amended June 7, 2012, p. 3 [longtime policy
owners may miss a payment “because they were being
hospitalized when the bill came, in others, as a result of a mail
mix-up or forgetfulness, etc.”].) Where, as here, the author’s
statements are part of committee materials — and are therefore
relayed not merely as personal views, but instead as part of the
Legislature’s consideration of the bill — they can serve as
salient reflections of legislative purpose. (See Carter v.
California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 928.)
Protective Life argues that the legislative history does not
clarify the statutory language, but we are not persuaded. True:
The materials do not explicitly consider the reach of the broadly
worded, but less than crystal clear, grace period and notice
provisions; and their references to protecting “seniors” could be
to the people whom the Legislature anticipated would benefit
from the new law down the line. But the insurer ignores the
clear guidance the materials do provide. At the very least, they
reflect lawmakers’ (a) awareness that consumers tend to hold
life insurance policies for long periods and to pay premiums for
many years; and (b) concern that policy owners, “especially
seniors” (Assem. Com. on Insurance Analysis, supra, at p. 1),
may lose the benefits of these extended payments by failing to
pay a single annual premium on time, and thereafter face
35
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
hardship to regain coverage. It would certainly be consistent
with the Legislature’s awareness and concern for it to seek to
protect all policy owners from losing coverage. (Cf. Calfarm,
supra, 48 Cal.3d at p. 827; conc. opn., post, at pp. 5–6.)
The consequences of Protective Life’s interpretation
strongly suggest, given the legislative history, that it wasn’t in
the ambit of the Legislature’s purpose for the statute to operate
as the insurer describes. (See Copley Press, Inc. v. Superior
Court (2006) 39 Cal.4th 1272, 1291 (Copley).) Indeed, the
insurer’s interpretation would produce results seemingly
incongruous with the legislation’s broader aims of preventing
forfeiture and its specific motivating concerns. As the
Legislature identified, policy owners may fail to make a
payment on time for a host of understandable reasons, including
some related to their age or health. But the very consumers the
Legislature identified as needing protection the most against
this risk — seniors and other longtime, potentially infirm or
incapacitated policy owners — would not presently be entitled
to the safeguards to help them maintain coverage they and their
beneficiaries depend on. They would face a host of adverse
financial consequences to resume coverage. (Ante, at p. 6.)
Meanwhile, those who arguably need protection the least —
younger policy owners, who recently purchased life insurance,
are less likely to miss a payment due to infirmity or
deteriorating health, and face a lower loss of past premium
investment and an easier time regaining coverage — are
protected, and with measures that will be likely consequential
to them only when they become “seniors” years down the line. If
a paradigmatic beneficiary of the new legislation was, say, a 70-
year-old life insurance policy owner who had paid premiums for
30 years before missing an annual payment, a new-policy-only
36
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
construction would mean that a person in this situation
wouldn’t garner protection from the new laws before 2043. Even
for a forward-thinking Legislature, this seems like a stretch.
(Cf. Bentley, supra, 2016 WL 7443189, at p. *4 [declining to give
effect to the “absurd result[s]” of Protective Life’s
interpretation].)
Assembly Bill No. 1747 (2011–2012 Reg. Sess.) also cuts
in favor of reading sections 10113.71 and 10113.72 broadly. The
bill not only added these sections to the Insurance Code, but also
amended section 10173.2, which concerns when life insurance
policies are assigned as security for a debt and the notice that
the insurer must give the assignee when the policy owner fails
to pay a premium. (§ 10173.2, as amended by Stats. 2012, ch.
315, § 3.) The Legislature amended section 10173.2 by changing
some deadlines and revising nonsubstantive language. More
notable is what section 10173.2 already said prior to
amendment: “When a policy of life insurance is, after the
effective date of this section, assigned in writing as security for
an indebtedness . . . .” (§ 10173.2, italics added.) The italicized
language by its terms cabins the statute’s application to
assignments after section 10173.2’s effective date. (Estate of
Coate (1979) 98 Cal.App.3d 982, 986–987; see also Mardirosian
v. Lincoln Nat. Life Ins. Co. (9th Cir. 1984) 739 F.2d 474, 477.)
In other words, when the Legislature added sections 10113.71
and 10113.72 to the Insurance Code, it knew that another
statute — indeed, a statute it amended in the very same bill —
used expressly future-oriented language. Despite this, the
Legislature did not add similar language to sections 10113.71
and 10113.72. This circumstance provides additional, if modest,
support for the conclusion that the grace period and notice
37
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
provisions apply universally. (Cf. Calfarm, supra, 48 Cal.3d at
p. 827 [similar]; conc. opn., post, at pp. 4–5.)
The various contextual arguments raised by Protective
Life and industry amici curiae fail to persuade.
First, Protective Life fails to substantiate its argument
that construing sections 10113.71 and 10113.72 to apply only to
postenactment policies gives effect to a key legislative
compromise. It’s well established that “compromises necessary
to [a statute’s] enactment may require adopting means other
than those that would most effectively pursue the main goal.”
(Landgraf, supra, 511 U.S. at p. 286.) But this general
proposition doesn’t mean we can strike a bargain the
Legislature never struck. (Cf. State Dept. of Public Health v.
Superior Court (2015) 60 Cal.4th 940, 956.) Here, Protective
Life identifies no indicia of compromise in the legislative history
or statutory language; instead, it simply invokes the
presumption against retroactivity, which we have determined
carries little if any weight in this case. (Ante, at pp. 25–26.)9
Protective Life also contends that the Legislature had
“good reasons” to restrict the application of sections 10113.71
and 10113.72 to postenactment policies: to avoid unfairly
altering the bargained-for grace period and notice rules, which
the agreed-to premium pricing had taken into account.
Similarly, amicus curiae Chamber of Commerce claims that
applying the new grace period to preenactment policies
“undermines insurers’ ability to prudently manage their
9
For this reason, we have no occasion to entertain another
of Protective Life’s arguments: that the Legislature’s failure to
enact the sections as part of urgency legislation cuts against
rebutting the presumption against retroactivity.
38
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
resources” and could leave insurers with “inadequate funds to
pay valid claims” statewide. Yet without evidence that
Protective Life or other insurers anticipated and accounted for
a projected rate of inadvertent defaults when setting their
premiums (ante, at p. 23), we have no basis to determine either
that (a) the new protections will create a significant financial
impact for insurers, or (b) the Legislature would have sought to
avoid such a policy outcome.
Moreover, we note that plaintiffs and supporting amici
curiae offer their own “good reasons” why the Legislature would
apply pretermination procedures to all policies: The procedures
(1) promote continuity in the insuring arrangement (cf. Bittinger
v. New York Life Ins. Co. (1941) 17 Cal.2d 834, 840 [“forfeitures
generally are not favored”]; People v. United Nat. Life Ins. Co.
(1967) 66 Cal.2d 577, 600 [“The insurance industry is regulated
primarily for the benefit of” insureds]); (2) place the burden on
the party who stands to gain financially from an early
termination; (3) create standardized rules governing policies;
and (4) help prevent payment disputes, which typically arise
after policy owners have died. We take into account these
considerations insofar as they plausibly counter the policy
arguments raised by Protective Life and industry amici curiae,
and they help us determine that plaintiffs’ construction “ ‘leads
to the more reasonable result.’ ” (Copley, supra, 39 Cal.4th at p.
1291.)
Finally, Protective Life briefly raises a constitutional
avoidance argument. (Garcia, supra, 2 Cal.5th at p. 804.) It
contends that the Legislature’s decision to restrict sections
10113.71 and 10113.72 to postenactment policies represented
an “especially sound” decision in light of contracts clause
concerns that would have flowed from altering the terms of
39
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
existing policies. (U.S. Const., art. I, § 10; see Cal. Const., art.
I, § 9.) What we conclude instead — relying on similar logic that
applies in our separate analysis of the presumption of
retroactivity (see Myers, supra, 28 Cal.4th at p. 841 [explaining
the presumption is rooted in constitutional principles]) — is that
requiring insurers to observe a 60-day grace period and give 30
days’ notice of impending lapse does not substantially impair
Protective Life’s contractual rights under an existing policy.
Calfarm, supra, 48 Cal.3d at pages 830–831 supports our
conclusion.
C.
The Court of Appeal held that insurance policies already
in effect when the Legislature reformed grace period and notice
requirements were not affected by sections 10113.71 and
10113.72. In reaching this conclusion, the appellate court cited
DOI guidance about these sections and claimed it had an
obligation to defer to these agency interpretations. We find
otherwise.
According to the Court of Appeal, two sources of DOI
guidance established the agency’s position that the sections
apply only to policies issued after January 1, 2013. First, the
court pointed to SERFF. (McHugh, supra, 40 Cal.App.5th at p.
1172.) SERFF is an internet-based system for insurers to
submit rate and form filings to the DOI for review and approval.
(Ibid.) According to the Court of Appeal, DOI “mandates the use
of SERFF and provides regulatory guidance to insurers through
SERFF, including guidance for compliance with the statutes.”
(Ibid.) As the court explained, DOI provided its determination
that sections 10113.71 and 10113.72 apply only to
postenactment policies with its SERFF “ ‘Instructions for
40
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
Complying with [Assembly Bill No.] 1747,’ ” which stated: “ ‘All
life insurance policies issued or delivered in California on or
after [January 1, 2013] must contain a grace period of at least
60 days.’ ” (McHugh, at p. 1172.) Second, the Court of Appeal
observed that senior DOI personnel consistently communicated
in written responses to inquiries from insurance industry
representatives that the requirements in Assembly Bill No.
1747 (2011–2012 Reg. Sess.) applied only prospectively.
(McHugh, at p. 1172.)
The Insurance Commissioner takes a different position in
his amicus curiae letter, arguing that the Court of Appeal erred
on both fronts. We agree. Neither the SERFF instruction nor
the correspondence represented official guidance on the agency’s
construction of sections 10113.71 and 10113.72, and as a result
neither merited any measure of presumptive deference (see
Yamaha, supra, 19 Cal.4th at pp. 7–8, 11); and Protective Life
offers no other good reason why we should defer (see id. at pp.
12–13 [contextual factors such as the agency’s expertise and
technical knowledge of the issue, and whether the agency’s
interpretation represents its carefully considered, long-
standing, and contemporaneous view, determine what level of
deference to give]).
In fact, the SERFF instruction does not appear to even
constitute an interpretation of sections 10113.71 or 10113.72.
The document simply instructs that policies issued on or after
January 1, 2013 must contain the 60-day grace period. That
instruction enables new, yet-to-be issued policy forms to align
with current law, in line with the electronic system’s function.
Contrary to the Court of Appeal’s view, the instruction provides
no view on whether the grace period or the other requirements
in sections 10113.71 and 10113.72 apply to existing policies. As
41
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
the Insurance Commissioner helpfully explains, SERFF is
simply a voluntary system for form and rate submissions, and
SERFF instructions like the one here “may include a brief
description of the relevant statutes,” but are “not intended to
serve as a formal legal opinion of the [DOI].”
Although agency correspondence may express an
interpretive view, it does not merit deference here. Although
courts should certainly consider the interpretations of an agency
advanced in litigation even if these are not associated with
formal administrative actions, we agree with the Insurance
Commissioner that ordinary agency correspondence provides us
with little assistance in our interpretive inquiry. As we
explained in Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th
749, 769, footnote 9, these types of private communications offer
poor guides because (a) they don’t appear to be the product of
“ ‘ “careful consideration” ’ ” of the legal issue, but instead reflect
interpretations prepared in ad hoc advice letters by individual
staff members; (b) the views expressed in them do not represent
“a quasi-legislative rule, promulgated pursuant to delegated
lawmaking power” (ibid.); and (c) they were “not disseminated
as an annotation by the [DOI] to be considered by anyone other
than the recipient, and there is no information regarding how
carefully the issue was considered” (ibid., applying Yamaha,
supra, 19 Cal.4th at pp. 11–16). For the same reasons, we give
no weight to the identical, as well as additional, correspondence
that we judicially notice at Protective Life’s request.10
10
Plaintiffs argue that applying sections 10113.71 and
10113.72 to the facts here requires us to conclude they are
entitled to recover the policy benefits from Protective Life. But
42
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
IV.
When the Legislature enacted changes to the Insurance
Code protecting people who hold life insurance policies from
inadvertently losing them, it established limited protections
that kept such policies from being revoked when policy owners
lapsed in paying premiums. Those provisions clearly establish
that life insurance policies must have a 60-day grace period
before they can be terminated for a premium lapse, and that
insurers cannot terminate policies for a premium lapse until
they give at least 30-day mailed notice to the policy owners and
to any additional designated individuals. What they don’t
explicitly establish is whether these protections apply to people
holding life insurance policies issued or delivered before these
amendments went into effect.
These sections are nonetheless best read to extend
protections to policies issued before these sections went into
effect. Key passages in sections 10113.71 and 10113.72 are
written in universal terms, best understood to modify policies
whether they come into effect after reforms were enacted or
were already in effect at the time. Other indicia of purpose
resolve any ambiguity that remains from the language. The
grace period and notice protections apply to all policies in effect
as of the sections’ effective date — and in this case, nothing in
the presumption against retroactive application of legislation as
ordinarily applied compels another result. The Legislature
this argument would require us to address the correctness of the
jury’s verdict. We decline to do so, as plaintiffs did not petition
for our review on this issue and it is not squarely before us.
(Nationwide Biweekly Administration, Inc. v. Superior Court.
(2020) 9 Cal.5th 279, 334, fn. 25.)
43
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Opinion of the Court by Cuéllar, J.
enacted the sections not only to provide protections to people in
the future, but also to ensure that existing policy owners don’t
lose the life insurance coverage that they may have spent years
paying for and on which their loved ones depend. Accordingly,
we reverse the judgment of the Court of Appeal and remand for
proceedings consistent with this opinion.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
44
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
S259215
Concurring Opinion by Justice Jenkins
I agree with the majority that sections 10113.71 and
10113.72 of the Insurance Code1 “apply to all life insurance
policies in force when these two sections went into effect,
regardless of when the policies were originally issued.” (Maj.
opn., ante, at p. 2.) I reach this conclusion by a different
analytical path. Even if, as defendant Protective Life Insurance
Company (Protective Life) argues, this conclusion constitutes
retroactive application of the statutes — such that the
presumption against retroactivity applies — the relevant
statutory language and legislative history are, in my view,
“sufficiently clear to compel the inference that the [Legislature]
did intend the provisions” to apply retroactively. (Californians
for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 229
(Mervyn’s).) Indeed, the majority acknowledges that “if the
presumption applies with its ordinary weight, the indicia of
legislative purpose here could rebut it.” (Maj. opn., ante, at p.
26.)
However, I do not endorse the majority’s conclusion that
applying the statutes to the policy at issue in this case does not
trigger the presumption — or, alternatively, that the
presumption applies but with something less than “its ordinary
weight” (maj. opn., ante, at p. 26) — because (a) the impact of
1
All unspecified section references are to the Insurance
Code.
1
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
doing so on Protective Life’s contractual rights and obligations
is insufficiently “substantial” to constitute a retroactive legal
change (maj. opn., ante, at p. 18), and/or (b) “any nominal
retroactive effect . . . plainly fails to present the type of concern
underlying the application of the presumption as we have
ordinarily understood it” (maj. opn., ante, at pp. 24–25). I
therefore concur only in the judgment.
I.
The insurance policy here at issue includes a 31-day “grace
period” for payment of the yearly premium, which provides in
relevant part: “A grace period of 31 days will be allowed for
payment of each premium after the first. This policy will
continue in force during the grace period. If the premium
remains unpaid at the end of the grace period, coverage will
cease.”
As the majority notes, the length of this contractual grace
period complied with applicable administrative regulations,
which then expressly required at least “a 31-day grace period.”
(Maj. opn., ante, at p. 9, fn. 3.) William McHugh, who purchased
the policy, failed to pay the premium that was due on January
9, 2013, by the end of the grace period. He died in June 2013.
Protective Life advised his named beneficiaries that the policy
terminated before his death for nonpayment of the premium.
The beneficiaries — plaintiffs Blakely McHugh and Trysta
Henselmeier — sued Protective Life for breach of contract and
breach of the implied covenant of good faith and fair dealing,
arguing that Protective Life improperly terminated the policy
without following the requirements of sections 10113.71 and
10113.72. Protective Life asserts that sections 10113.71 and
10113.72 do not apply in this case because they took effect on
2
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
January 1, 2013, long after McHugh’s policy was issued in 2005.
A contrary conclusion, it argues, would constitute a retroactive
application of the statutes — by extending the policy’s stated
grace period and imposing new notice requirements — and there
is insufficient evidence to “overcome” the “presumption ‘that
legislation operates prospectively rather than retroactively.’ ”
II.
Even if Protective Life is correct that applying the statutes
to the policy at issue here triggers the presumption against
retroactivity, Protective Life’s argument ultimately fails
because the presumption has been overcome. As the majority
notes, “[t]he retroactivity presumption is not a ‘straitjacket.’ ”
(Maj. opn., ante, at p. 25.) “Even without an express declaration,
a statute may apply retroactively if there is ‘ “a clear and
compelling implication” ’ that the Legislature intended such a
result.” (People v. Alford (2007) 42 Cal.4th 749, 754.) “We may
infer such an intent from the express provisions of the statute
as well as from extrinsic sources, including the legislative
history.” (Preston v. State Bd. Of Equalization (2001) 25 Cal.4th
197, 222 (Preston); see Alford, at p. 754 [relying on “legislative
history” in giving statute retroactive effect].)
In my view, the statutory language and relevant
legislative history are “sufficiently clear to compel the inference
that the [Legislature] did intend” sections 10113.71 and
10113.72 to apply retroactively. (Mervyn’s, supra, 39 Cal.4th at
p. 229.) Section 10113.71, subdivision (a), states that “[e]ach life
insurance policy issued or delivered in this state shall contain a
provision for a grace period of not less than 60 days from the
premium due date.” (Italics added.) As the majority explains,
this language “reasonably” may be understood as “a mandatory
3
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
directive for all policies (i.e., each policy must be read to contain
a grace period),” without any “temporal limitation.” (Maj. opn.,
ante, at p. 31.) Next, section 10113.72, subdivision (c), states
that “no individual life insurance policy shall lapse or be
terminated for nonpayment of premium unless the insurer, at
least 30 days prior to the effective date of the lapse or
termination, gives notice to the policy owner and to the person
or persons designated pursuant to subdivision (a), at the address
provided by the policy owner for purposes of receiving notice of
lapse or termination.” (Italics added.) This language states a
substantive rule of law — apparently applicable to all policies
(“No individual policy” (ibid.)) — that precludes lapse or
termination of any policy absent provision of the required notice.
The breadth of this language, and the absence of any
language limiting the statutes’ application to policies issued
after the statutes’ effective date, are significant given that the
Legislature, in the same 2012 measure that added sections
10113.71 and 10113.72, amended section 10173.2. As to life
insurance policies “assigned in writing as security for an
indebtedness,” section 10173.2 requires “insurer[s]” to mail
written notice to the assignees “each time the policy owner has
failed or refused to transmit a premium payment to the insurer
before the commencement of the policy’s grace period or before
the notice is mailed.” As the majority explains, when the
Legislature amended section 10173.2 in 2012, the statute
contained — and still contains — language giving it prospective-
only effect, by providing that the statute’s requirements apply
only when a life insurance policy is assigned “ ‘after the effective
date of this section.’ ” (Maj. opn., ante, at p. 37; see Stats. 2012,
ch. 315, § 3; Stats. 1975, ch. 792, § 1, p. 1816.) Thus, as the
majority also explains, “when the Legislature added sections
4
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
10113.71 and 10113.72 to the Insurance Code, it knew that
another statute — indeed, a statute it amended in the very same
bill — used expressly future-oriented language,” but the
Legislature “did not add similar [prospective-only] language to
sections 10113.71 and 10113.72.” (Maj. opn., ante, at p. 37.)
This circumstance indicates the Legislature’s intent to make the
grace period and notice provisions applicable to all policies,
regardless of issue date. (See Calfarm Ins. Co. v. Deukmejian
(1989) 48 Cal.3d 805, 827 (Calfarm) [“necessary inference” from
“omission” of language giving statute prospective-only effect is
that statute’s application “was not so limited,” given language
in simultaneously enacted provision “expressly” giving it
prospective-only effect].)
The relevant legislative history reinforces this conclusion.
According to one analysis of the proposed legislation, the
“[p]urpose of the bill” was “[t]o provide consumer safeguards
from which people who have purchased life insurance
coverage . . . would benefit.” (Sen. Com. on Insurance, Analysis
of Assem. Bill No. 1747 (2011–2012 Reg. Sess.) as amended June
7, 2012, p. 2, italics added, underscoring omitted.) Several other
analyses used identical language in describing what,
“[a]ccording to the author” of the legislation, the proposed
statutes would “provide[].” (Assem. Com. on Insurance,
Analysis of Assem. Bill No. 1747 (2011–2012 Reg. Sess.) as
amended Apr. 26, 2012, p. 1; see Assem. 3d reading analysis of
Assem. Bill No. 1747 (2011–2012 Reg. Sess.) as amended May 9,
2012, p. 2 [same].) In explaining the need for these safeguards,
the same analyses explained that under existing law,
policyholders — “especially seniors” — could “easily lose”
coverage after “many years” of “paying premiums” if they
“accidentally missed” making even “a single premium” payment.
5
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
(Assem. Com. on Insurance, Analysis of Assem. Bill No. 1747
(2011–2012 Reg. Sess.) as amended Apr. 26, 2012, pp. 1–2;
Assem. 3d reading analysis of Assem. Bill No. 1747 (2011–2012
Reg. Sess.) as amended May 9, 2012, p. 2; Sen. Com. on
Insurance, Analysis of Assem. Bill No. 1747 (2011–2012 Reg.
Sess.) as amended June 7, 2012, p. 2.) The Legislature sought
to address this problem through the combined effect of the new
notice and extended grace period provisions. As the majority
observes, to conclude that the Legislature did not intend to
extend these new safeguards to existing at-risk policyholders
who, according to the legislative history, were the motivation for
the legislation, “would produce results seemingly incongruous
with” the Legislature’s intent. (Maj. opn., ante, at p. 36.) Given
“[t]he evident purpose of” the statutes, “the conclusion is
inescapable that” they were “intended to apply to policies in
force on the . . . date” they took effect. (Calfarm, supra, 48
Cal.3d at p. 827.) To decline to give the statutes’ retroactive
effect would, contrary to our precedent, turn the presumption
into a “ ‘straitjacket.’ ”2 (Maj. opn., ante, at p. 25.)
III.
In light of my conclusion that the statutory language and
legislative history are “sufficiently clear to compel the inference
that the [Legislature] did intend the provisions” to apply
retroactively (Mervyn’s, supra, 39 Cal.4th at p. 229), it is
unnecessary for me to decide whether, as Protective Life asserts,
2
The majority asserts that “our cases do not definitively
indicate that the presumption has been rebutted” in this case.
(Maj. opn., ante, at p. 26). But my analysis and conclusion are
fully in line with, and supported by, our analysis and conclusion
in Preston, Calfarm, and Alford, and the majority does not
assert otherwise.
6
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
applying the requirements of sections 10113.71 and 10113.72 in
this case constitutes a retroactive application of the statutes
that triggers the presumption. Contrary to what the majority
might seem to suggest, this approach is fully “consistent with”
precedent (maj. opn., ante, at p. 26) in which we first
“assum[ed],” without deciding, that applying a statute would be
giving it retroactive effect, and then held, based on “the
pertinent legislative materials,” that the Legislature intended
the statute to have such effect. (Preston, supra, 25 Cal.4th at
pp. 221, 222.) I therefore do not join the majority’s conclusion
that the presumption is inapplicable or applies with less than
its ordinary force, or with its discussion of those questions.
Although I acknowledge that the majority’s choice to
address the question of whether the presumption even applies
is “consistent with previous cases,” it is not evident to me that
the majority’s approach is “the most thorough” one. (Maj. opn.,
ante, at p. 26.) I say this because the majority leaves more
questions unanswered than it resolves. It does not definitively
decide whether applying the statutes here would result in
“retroactive changes for purposes of the presumption.” (Ibid.) It
also declines to decide whether the presumption is
inapplicable — such that it carries no weight — or whether it
applies but carries less than “its ordinary weight.” (Ibid.; see id.
at p. 38 [the presumption “carries little if any weight” in this
case]).3 Nor does the majority explain, with respect to its
3
Given the majority’s alternative holding that the
presumption applies and carries some weight, its choice to
address the question of whether applying the statutes here
involves retroactivity ultimately does not, as the majority
asserts, “avoid having to apply” the presumption “in a
7
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
alternative holding that the presumption applies but carries less
than “its ordinary weight” (maj. opn., ante, at p. 26), what
weight the presumption does carry or what is required to
overcome it. Indeed, notwithstanding the majority’s alternative
holding, its analysis proceeds as if the presumption is
completely inapplicable. For example, the majority never
mentions the presumption or appears to give it any weight, as
evidenced by the majority’s express refusal even “to entertain”
Protective Life’s argument “that the Legislature’s failure to
enact the sections as part of urgency legislation cuts against
rebutting the presumption.” (Id. at p. 38, fn. 9.) In short, by
declining to offer answers to what it calls the “threshold
question” (id. at p. 26) of retroactivity, the majority’s “approach”
ultimately fails to yield an analysis that provides lower courts
with clear and adequate guidance for applying the presumption,
as the majority puts it, in a way we have not previously
“understood it” (id. at p. 25) and with less than “its ordinary
weight” (id. at p. 26).
Nor is it clear to me that our precedents “support[]” (maj.
opn., ante, at p. 24), much less “strongly favor[]” (id. at p. 17),
the majority’s conclusion that the presumption either does not
apply at all or applies but carries less than “its ordinary weight”
(id. at p. 26). I have found no case — and the majority cites
none — in which this court (or a Court of Appeal) has declined
to apply the presumption because the impact on contractual
rights and obligations of applying a new statute to an existing
contract was insufficiently “substantial” to trigger the
presumption. (Maj. opn., ante, at p. 18.) Nor have I found a
circumstance where it’s not necessary.” (Maj. opn., ante, at p.
26.)
8
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
case — and again, the majority cites none — in which this court
(or a Court of Appeal) has applied the presumption with less
than “its ordinary weight” (id. at p. 26), either for the reason the
majority offers here — applying the statutes gives them
retroactive effect, but only in a “technical[],” “nominal,” or
“trivial” way (id. at p. 24) — or for any other reason.
In support of its view, the majority states that (1) “we have
generally explained that a new law operates ‘retroactively’ when
it changes ‘ “ ‘the legal consequences of past conduct by imposing
new or different liabilities based upon such conduct,’ ” ’ ” and (2)
“[w]e have asked whether the new law ‘ “ ‘substantially affect[s]
existing rights and obligations.’ ” ’ ” (Maj. opn., ante, at p. 16.)
But our precedents also have long declared that a law is
“ ‘retroactive’ ” for purposes of the presumption if it “ ‘takes
away or impairs vested rights acquired under existing laws . . .
or give[s] a right [that] never before existed.’ ” (Davis &
McMillan v. Industrial Acc. Com. (1926) 198 Cal. 631, 637–638.)
Our precedents also indicate that where a law “ ‘destroy[s] or
impair[s] an existing right, or give[s] a right which never before
existed,’ ” the law necessarily “ ‘relate[s] to substantial rights’ ”
and is therefore retroactive for purposes of the presumption.
(Id. at p. 638 [“ ‘Retrospective statutes are usually considered to
embrace only those which relate to substantial rights, as those
which destroy or impair an existing right, or give a right which
never before existed’ ”].) Consistent with this understanding,
our modern decisions broadly declare that “ ‘ “ ‘[e]very
statute . . . which takes away or impairs vested rights acquired
under existing laws . . . , in respect to transactions or
considerations already past, must be deemed retrospective.’ ” ’ ”
(Strauss v. Horton (2009) 46 Cal.4th 364, 471–472, italics
added.) Indeed, the majority acknowledges that at least “some
9
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
of our cases” articulate a “broad[] definition” of retroactivity that
“seems to embrace any conceivable statutory impact on the
terms of an existing contract — including an insurance
contract.” (Maj. opn., ante, at p. 16.) The majority’s analysis
does not convince me that “[o]ur precedent . . . establishes [the]
different,” far narrower “proposition” that retroactivity does not
exist where application of “a new law” would, in fact, “impact”
vested contractual rights by “chang[ing] . . . the contracting
parties’ rights or obligations,” but a court decides that the
“impact” on those contractual rights is not sufficiently
“substantial.” (Maj. opn., ante, at p. 21.) Thus, contrary to the
majority’s assertion, my reservations about its analysis and
conclusion go far beyond its failure to “identify a sufficiently
analogous case.” (Id. at p. 20.) Having failed to find a decision
from any court applying our decisions in the way the majority
does, and having thoroughly “grapple[d] with this established
body of law” (id. at p. 19), it simply is not evident to me that our
precedents “support[]” (id. at p. 24) the majority’s novel analysis.
It also is not evident to me that the statutes, as applied to
existing policies, merely “make relatively cabined, procedural
changes to how insurers administer policies,” by “requir[ing]
insurers to provide policy owners with limited but critical
safeguards to avoid defaulting.” (Maj. opn., ante, at p. 18.) As
the majority acknowledges, “ ‘promptness of payment is
essential in the business of life insurance,’ ” and “insurers
depend on the regular, timely payment of premiums in order to
pay death benefits and cover the cost of administering policies.”
(Maj. opn., ante, at p. 9.) As noted above, the policy in this case
expressly states that “coverage will cease” if the premium is not
paid at the end of “[a] grace period of 31 days.” Under section
10113.71, subdivision (a), coverage must remain in force,
10
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
notwithstanding the contractual provision and the nonpayment
of premium, for at least 60 days. In my view, this mandatory
coverage extension arguably constitutes more than a mere
“procedural change[].”4 (Maj. opn., ante, at p. 18.)
In all events, in terms of the presumption’s applicability
and operation, our prior decisions eschew reliance on whether a
change may be characterized as procedural rather than
substantive. (Aetna Cas. & Sur. Co. v. Industrial Acc.
Commission (1947) 30 Cal.2d 388, 394.) As we have explained,
“ ‘In deciding whether the application of a law is prospective or
retroactive, we look to function, not form. [Citations.] We
consider the effect of a law on a party’s rights and liabilities, not
whether a procedural or substantive label best applies.’ ” (In re
Friend (2021) 11 Cal.5th 720, 743.) “In this area of the law, . . .
substance and procedure are so interwoven that their attempted
segregation into clean-cut categories becomes meaningless;
here, as elsewhere, the hoary dichotomy between the
substantive and the procedural cannot serve as a talismanic
solution to the retroactivity problem.” (People v. Charles (1967)
4
Curiously, despite the majority’s acknowledgement that
prompt and timely payment “ ‘is essential’ ” to insurers (maj.
opn., ante, at p. 9), the majority later rests its conclusion in part
on Protective Life’s failure to “clearly” show how extending the
grace period “constituted a disruptive contract change” (maj.
opn., ante, at p. 24), its failure to “specifically identify any way
in which the bargain memorialized in the insurance contract
would be substantially upset by applying the [extended] grace
period” (id. at p. 22), and its reliance instead on a “generalized,
amorphous allusion to financial impact” (ibid). According to the
majority, Protective Life can show a sufficient “financial impact”
only by providing “evidence that [it] or other insurers
anticipated and accounted for a projected rate of inadvertent
defaults when setting their premiums.” (Id. at p. 39.)
11
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
66 Cal.2d 330, 336.) The majority fails to even acknowledge, let
alone “grapple with this established body of law.” (Maj. opn.,
ante, at p. 19.)
I also am not convinced that under our precedents, “the
‘highly regulated’ nature of the insurance industry” (maj. opn.,
ante, at p. 21) is a factor that weighs against fully applying the
presumption. Indeed, our decision in Interinsurance Exchange
of the Auto. Club of Southern Calif. v. Ohio Cas. Ins. Co. (1962)
58 Cal.2d 142, seems to indicate precisely the contrary. That
case did not, as the majority indicates, present the question of
whether to apply a statutory “change [that] would have upended
the bargain struck” in “previously negotiated contracts.” (Maj.
opn., ante, at p. 18.) Instead, the issue in the case was whether
to apply a statutory change that would have negated a
contractual provision that was not expressly contained in the
contract — an insurance policy — but that was “written into the
policy as a matter of law” and “public policy.” (Interinsurance
Exchange, at p. 146.) In answering this question, after stating
the “rule” that provisions required by “the statutory and
decisional law in force at the time the policy is issued . . . ‘are
read into each policy . . . and become a part of the contract with
full binding effect upon each party’ ” (id. at p. 148), we explained
that “[b]ased upon” the presumption against retroactivity, “this
rule is followed even though there has been a subsequent
amendment or repeal of the statute incorporated into the policy”
(id. at p. 149). Applying the presumption, we then declined to
apply the new statute to existing policies, finding “nothing to
indicate that the Legislature wished the [statutory]
amendment . . . to have such a retroactive effect.” (Ibid.) This
analysis and holding seem inconsistent with the majority’s
reliance on “the ‘highly regulated’ nature of the insurance
12
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
industry” (maj. opn., ante, at p. 21) as a factor weighing against
application of the presumption. In my view, the “expectations”
at issue under the policy here — which arose from an express
contractual provision that was mandated by then-applicable
administrative regulations and which would be “disrupt[ed]” by
applying the statutes to the policy — are at least as “settled”
as — and arguably more settled than — the “expectations” at
issue in Interinsurance Exchange, which arose from a provision
read into the policy by law and which we found sufficient to
trigger application of the presumption. (Maj. opn., ante, p. 19.)
Last, I note that the majority’s analysis of whether and
how the presumption applies appears to overlap the inquiry that
governs our analysis of whether a retroactive application of a
law unconstitutionally impairs contractual rights. As we
recently explained, the “threshold question” of the constitutional
inquiry is whether the state law “ ‘ “operate[s] as a substantial
impairment of a contractual relationship.” ’ ” (Alameda County
Deputy Sheriff's Assn. v. Alameda County Employees'
Retirement Assn. (2020) 9 Cal.5th 1032, 1075.) “In making this
determination, we “ ‘consider[] the extent to which the law
undermines the contractual bargain, interferes with a party’s
reasonable expectations, and prevents the party from
safeguarding or reinstating his rights.’ ” (Ibid.) Under the
majority’s analysis, whether the presumption against
retroactivity fully applies likewise turns on whether the impact
of applying the new law to existing contracts is sufficiently
“substantial” (maj. opn., ante, at p. 18), and the same factors
likewise are considered in deciding these questions (id. at p. 17
[“focus[]” of “ ‘retroactivity’ ” inquiry is “whether the statutory
change in question significantly alters settled expectations”], 18
[statutory changes here “do not disrupt clearly settled
13
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
expectations” in “fashion” that makes application of statutes
retroactive and applying them would not “impinge on a
contracting party’s substantial rights or unfairly upset the
bargain memorialized in the insurance policy”], 22 [Protective
Life fails to “specifically identify any way in which the bargain
memorialized in the insurance contract would be substantially
upset by applying” the new statutory requirements]). Our
previous decisions state that the question of whether the
presumption applies is separate and different from the question
of whether retroactive application of a law unconstitutionally
impairs contractual rights. (Hogan v. Ingold (1952) 38 Cal.2d
802, 821 [“the question of the constitutionality of retroactive
legislation and the question of the applicability of a rule” against
retroactivity “are distinct”]; People ex rel. Thorne v. Hays (1854)
4 Cal. 127, 139, 131, 132 [“there is a broad difference” between
the question of whether a statute “not expressly made
retrospective in terms, should not be so construed as to affect
past transactions” and whether retroactive application of the
law unconstitutionally “divest[s] the rights of individuals vested
previous to its passage”].) I am not convinced that it is
appropriate to make the two inquiries similar in this way or that
doing so will not have unforeseen consequences.
14
MCHUGH v. PROTECTIVE LIFE INSURANCE COMPANY
Jenkins, J., concurring
In summary, because it is not clear to me the majority’s
analysis squares with our jurisprudence, I do not join its
conclusion that the presumption against retroactivity is
inapplicable or applies with less than its ordinary weight.
However, I concur in the judgment because I conclude that the
statutory language and relevant legislative history are
sufficiently clear to overcome the presumption, assuming it
applies.
JENKINS, J.
I Concur:
CORRIGAN, J.
15
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion McHugh v. Protective Life Insurance Co.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 40 Cal.App.5th 1166Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S259215
Date Filed: August 30, 2021
__________________________________________________________
Court: Superior
County: San Diego
Judge: Judith F. Hayes
__________________________________________________________
Counsel:
Winters & Associates, Jack B. Winters, Jr., Georg M. Capielo, Sarah D.
Ball; Williams Iagmin and Jon R. Williams for Plaintiffs and
Appellants.
Law Offices of Daniel D. Murphy and Daniel D. Murphy for California
Advocates for Nursing Home Reform, Inc., as Amicus Curiae on behalf
of Plaintiffs and Appellants.
Glick Law Group and Noam Glick for California Retired County
Employees Association as Amicus Curiae on behalf of Plaintiffs and
Appellants.
Neil Granger, in pro. per., as Amicus Curiae on behalf of Plaintiffs and
Appellants.
Grignon Law Firm, Margaret M. Grignon; Maynard Cooper & Gale, C.
Andrew Kitchen, Alexandra V. Drury, John C. Neiman, Jr.; Noonan
Lance Boyer & Banach and David J. Noonan for Defendant and
Respondent.
Alston & Bird and Thomas A. Evans for American Council of Life
Insurers as Amicus Curiae on behalf of Defendant and Respondent.
Quinn Emanuel Urquhart & Sullivan and Kathleen M. Sullivan for
Chamber of Commerce of the United States of America as Amicus
Curiae on behalf of Defendant and Respondent.
Matthew Rodriguez, Acting Attorney General, and Lucy F. Wang,
Deputy Attorney General, for Ricardo Lara, Insurance Commissioner,
as Amicus Curiae, upon the request of the Supreme Court.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Jon R. Williams
Williams Iagmin LLP
2475 Kettner Boulevard
San Diego, CA 92101
(619) 238-0370
John C. Neiman, Jr.
Maynard Cooper & Gale P.C.
1901 Sixth Avenue North, Suite 1700
Birmingham, AL 35203
(205) 254-1228